Opinion
No. 42319.
March 10, 1952.
Paul H. Koenig, William L. Mason, Jr., St. Louis, for appellant.
J. D. Leritz, St. Louis, for respondent.
Action for damages for personal injuries sustained through defendant's negligence. Verdict and judgment were for plaintiff for $15,000 but the trial court, on motion, set the verdict and judgment aside and entered judgment for defendant and, in the alternative, granted a new trial on account of erroneous instructions. Plaintiff has appealed.
Plaintiff, a nine year old boy, was injured on the premises of the Armour Packing Company, within the St. Louis National Stockyards, at National City, Illinois, when he jumped to the ground from a place on the side of a building and was caught between the building and a tractor trailer truck which was moving into position to load hogs at an outbound loading dock.
The exhibits indicate that the premises were separated from the street by a wooden fence, except for an open gateway through which vehicles entered. To the right of this gateway, but some distance back from the street and located so that the righthand side of the open gateway was in line with its south frontage, was the building referred to as the hog house. It was a large open-sided building with a ground floor and two concrete floors above, the floors being supported by concrete pillars. The several floors were enclosed several feet up with fencelike structures. Along the top of the fence surrounding the ground floor, but on the outside of the building, were heavy pieces of lumber referred to as bumper boards, against which trucks could bump in moving up to the building to load hogs. On the south, and on the east side of the hog house, were double decked outbound hog chutes or ramps extending up from the hog pens on the ground floor of the building to the proper height so that hogs could be loaded into double-deck trucks parked at the side of the building. To reach the chutes on the south side of the building trucks had to be backed into position. Although the record is not clear, it seems that a truck would enter the premises from the east, headed west, and turn north between the building and the street, then back south and swing the rear of the truck or trailer to the west around the southeast corner of the building and west along the south side of the building to the outbound hog chutes. When the rear of the trailer reached a point west of the chutes, the tractor portion would be jackknifed to the south and backed to place the front of the trailer over against the building, so that the trailer section would be parallel to the south front of the building, in front of the chutes and up against the bumper bar for loading.
Plaintiff's father worked in the National Stockyards and plaintiff had been over there many times to play. On May 14, 1948, instead of going to school, plaintiff went over to the National Stockyards with another boy seven years old and perhaps others. There were hogs in the pens on the ground floor of the hog house. Plaintiff climbed up on the south side of the building and stood in the mouth of the upper outbound hog chute, approximately seven feet above the ground. One of plaintiff's companions was standing on the south side of the building by the second post from the east side, with two posts between him and the plaintiff, while plaintiff was standing on the ledge at the mouth of the upper chute and on the edge of the platform which extended inside as a ramp or runway down into the hog pens. Plaintiff was close to and leaning against the post on the east side of the chute. The bumper board extended out away from the platform upon which he was standing. He was looking inside the building, down the ramp into the hog pens, watching two hogs fight. There was also evidence that he was standing "on the top of the platform" of the second, or higher chute, on the edge of the runway, when the truck came and all the time the truck was turning around and backing into position. He had been there five to ten minutes or more, when he first saw the truck. It was a tractor trailer truck and the trailer had two floors used to haul hogs to the packing house. The back end of the trailer was then on the west side of him a little ways away, perhaps three feet, moving, when he first saw it. He turned (apparently to the east) and jumped down, first to the level of the lower hog chute and then to the ground and away from the building. The truck was "moving backwards against the wall, closing in, the front sticking out." He jumped to get out of the way, as the truck would have come up to where he was standing, but not any closer than the bumper board. As he jumped to the ground, the front of the trailer moved in and pinned him up against the pen or wall.
About 1:15 to 1:30 p. m., on the day plaintiff was injured, an employee of the St. Louis Stockyards Company saw several children playing on the ledge in front of the outbound hog chutes on the south side of the hog house and on and about the southeast corner of the hog house. He saw the children two or three times. They were playing and looking through the cracks at hogs in the pens. It was a nice dry day. He saw the children before he saw the truck, but he did not see the accident. He saw the truck standing there after plaintiff was injured. He did not know where any of the children were when plaintiff was injured.
There was evidence that the National Stockyards was "an open market for people to come and buy and sell." Often there were exhibits of cattle and horses. Persons passing on the street could hear the squeaking of pigs. The area at "the hog outbound loading dock" was more or less an open dock where people could go in and out as they wanted to. Children had played on and about the hog house for years. On occasions, children were invited to visit the premises, especially the 4-H clubs, and the stockyards company had a man to show them around and explain different things to them. Boys came and left as they wanted to, they came to dig worms for fishbait or to play, after school or at noontime, whenever they wanted to. Children had been seen from time to time by employees of the stockyards company at the particular loading dock in question. For many years they had climbed on and about the hog house and chutes when they wanted to. The entrance way to the premises was always open, there was no way to close it and no signs to keep children out. "Always a certain amount of children play hooky and go to the stockyards."
Plaintiff's main instruction upon which the cause was submitted included a finding of long, frequent and habitual user of the chutes by children; "that defendant's driver knew, or in the exercise of ordinary care could have known, of such frequent and habitual use of said chute at said place by children * * * and * * * that defendant's driver failed to exercise ordinary care to keep a lookout for children at the place plaintiff was standing, and was thereby negligent."
Appellant contends that the court erred in holding that plaintiff failed to make a case for the jury under the applicable Illinois law. Respondent, on the other hand, contends that "the evidence failed to establish an obligation on defendant to watch or look for plaintiff at the mouth of the top loading dock." It is admitted that the injury occurred in Illinois and that the substantive law of Illinois governs this case. In view of the pleadings and admissions we are required to take judicial notice of the public statutes and judicial decisions of that state. Sections 490.080 and 509.220, RSMo 1949, V.A.M.S.
Although defendant denied in its answer that a truck operated by its agent struck and injured the plaintiff and, although, plaintiff offered no substantial evidence from which such fact could have been legitimately inferred, the cause was tried upon the theory that defendant's truck caused the injury. Both parties proceeded in the trial upon the theory it was a conceded fact that defendant's truck did cause the injury and respondent takes no different position here. Lucius v. Wells, Mo.App., 263 S.W. 546, 549(2).
As stated, the cause was brought and submitted to the jury upon the theory that defendant through its truck driver failed to exercise ordinary care to keep a lookout for plaintiff standing on the loading dock in question and was thereby negligent. Appellant concedes it was incumbent upon him to show facts from which the law would impose a duty upon defendant's truck driver "to be on the lookout for plaintiff." It was admitted by the pleadings that plaintiff was on the premises of the Armour Packing Company and no business relationship or permission for his presence on the premises was shown.
Appellant takes the position "it is fairest to say simply that he was something more than a bare licensee," however, he insists that, even if he had been a trespasser, the defendant "would have owed him exactly the same duty it owed to any other person on the premises at the time." Appellant relies upon Schiermeier v. Hoeffken, 309 Ill.App. 250, 33 N.E.2d 147, where recovery was allowed to a plaintiff, who with other children was seated in the yard of a third person, watching the progress of improvements being made in a public street, when the contractor's dual wheel truck was so operated over debris in the street (spinning the dual wheels at a rapid rate) that a brickbat was thrown against the plaintiff. The driver of the truck had been "standing on the ground watching the operations and could see the brick and mortar being spilled to the ground. The workmen could also see the children who were sitting in the yard watching the operations. * * * The evidence * * * demonstrated that the defendants were aware that bricks and parts of bricks, and loose mortar and sand, were falling to the street and had fallen to the street, under the wheels of the trucks. Evidence in the record indicates that the presence of the plaintiff was known, or should have been known, under the facts, to the defendants or their agents." The court held "that the defendants owed a duty to plaintiff to refrain from negligent conduct toward him". 309 Ill.App. 250, 253, 259, 33 N.E.2d 147, 148, 150.
Appellant further points to the evidence of extensive public user, especially by juveniles, of the open area on the south and east side of the hog house, upon the building itself and on and about the outbound hog chutes. While such facts were shown, there was no evidence that defendant's truck driver, or any of defendant's agents or servants had ever been upon the premises in question prior to the occasion in question, or that they had seen children on the premises or knew that children frequented the premises. There was no evidence that such user, as was shown by the evidence, was known to, or should have been known to defendant or its truck driver. Defendant was not bound (on the issue of knowledge of user so as to make a jury question) by counsel's opening statement that the truck driver would "testify that he had been over there many times over a period of twenty years, and that at no time during all of these years has he observed any children in that locality." Russ v. Wabash West Ry., 112 Mo.App. 45, 50, 20 S.W. 472, 18 L.R.A. 823; Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670; Evans v. Sears, Roebuck Co., Mo. App., 129 S.W.2d 53, 57. The truck driver did not testify and defendant offered no evidence on the issue of liability.
Appellant apparently recognizes that user was unknown to defendant since he subsequently proceeds to argue that "plaintiff was entitled to have defendant refrain from negligent conduct toward him," on the theory that the truck driver knew of his presence on the upper chute or should have known of his presence there under the circumstances shown; that is, that the truck driver saw him or ought to have seen him under the particular facts shown. Schiermeier v. Hoeffken, supra.
Appellant points out that defendant's truck driver was operating a motor vehicle and had driven from the public street onto a traveled area on private property and that the operator owed a duty to exercise ordinary care to keep a lookout for persons and property on such premises. A "motorist has common law duty to exercise reasonable care in operation of his vehicle in order to avoid collisions." Pottei v. Demanes, 338 Ill.App. 287, 87 N.E.2d 332. The same rule has been applied in this state when a motor vehicle is operated on private property where the character of the place and its use resemble a public street. Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27, 30; State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W.2d 1193, 1196. The rule is stated in Blashfield, Cyclopedia of Automobile Law and Procedure, Sec. 3361, as follows: "A motorist driving on the premises of another must use reasonable care to avoid injuring persons thereon, and reasonable care should be commensurate with the dangers to be anticipated. The exercise of due caution may require the driver to give ample warning of his approach, and, if he has reason to expect children to be playing thereabout, he should take every reasonable precaution for their safety."
There is no evidence that defendant's truck driver in fact saw the plaintiff or any other children on the premises at any time. However, appellant argues that the truck driver, in his normal position behind the wheel, could see what was in front of him and within the range of his natural side vision to either side; that "the driver of such a vehicle, entering the premises in question as indicated could not help but see plaintiff"; that "the driver had to look ahead and to each side to drive a truck between the heavy uprights forming the limits of the entrance"; and that "in doing so, he could not miss seeing plaintiff standing where he was standing." Appellant's theory is that the evidence is such that a jury could find that the truck driver did in fact see him or ought to have seen him in the exercise of ordinary care in the operation of the truck. There is no evidence that plaintiff or anyone else was upon the open areaway in the pathway of the truck or upon the traveled area as the truck entered upon the premises. No one was in the pathway of the truck where it would have been the truck driver's duty to see him as the truck entered the premises through the said gateway. The evidence shows that, when the truck entered the premises, plaintiff was standing in the mouth of the upper hog chute on the south side of the building. The hog chute did not extend beyond the side of the building, but was flush with it, and plaintiff was between the two posts forming the sides at the end of the upper chute. Plaintiff was leaning against the east post. Defendant's driver was not approaching the building from the south, but from the east so that the north side of the truck was approximately in line with and parallel to the south side of the building, which building was back some distance west of the street. Since plaintiff was not in the pathway of the truck or upon the traveled portion of the areaway into and upon which the truck was being operated, there was no duty on the truck driver to see him at that time. There is no substantial evidence in the record from which the jury could find that the driver did see plaintiff or should have seen him when the truck entered the premises. There was no duty to look off to the right side of the truck's pathway and upon the side of the hog house to see plaintiff, who was in effect standing in an opening on the south side of the building and not then in the pathway of the truck. It is only where there is a duty to look that the rule "to look is to see" applies and a failure to see what is plainly visible is negligence. Pottei v. Demanes, supra.
"To sustain a verdict for damages for personal injuries it is incumbent upon the plaintiff to allege and prove the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains and the failure of the defendant to perform that duty, which failure resulted in the injury. * * * The facts alleged and proved must be such as to bring the right of recovery within some statute or common-law rule." Overstreet v. Ill. Power Light Corp., 356 Ill. 378, 383, 190 N.E. 676, 678; McAndrews v. Chicago, L.S. E.R. Co., 222 Ill. 232, 236, 78 239, 78 N.E. 603; Mackey v. Northern Milling Co., 210 Ill. 115, 117, 71 N.E. 448. In the McAndrews case, 222 Ill. 232, 236, 78 N.E. 603, 605, in ruling as to the sufficiency of a petition, the court said "it is not averred in the original declaration that the defendant knew, or ought to have known, that plaintiff was upon said car; nor are facts averred from which it appears that a duty rested upon the defendant to anticipate the presence of the plaintiff upon or in proximity to the car with which the moving cars came in contact."
Was there any evidence in the record to show that the truck driver did see or, under the facts shown, ought to have seen the plaintiff as the operator maneuvered the truck into position along side the building? It is common knowledge that in the operation of motor vehicles in and about buildings or in backing them into position about a building such as the hog house, which was surrounded by a large bumper board, the operator would be concerned with the movement and location of his vehicle with reference to the building, and as to the ground area over which the truck was moving. There would be no occasion or necessity to look up some six or seven feet on the side of the building, above the bumper board and to look into the entrance to the top one of the double-deck outbound hog chutes. An operator would naturally and by habit observe the area over which the truck was being moved rather than the objects or persons at the opening in the side of the building. We find no substantial evidence in the record from which a jury could infer or find as a fact that defendant's truck driver ever saw or, under the facts and circumstances shown, ought to have seen, observed and known of plaintiff's presence as the driver maneuvered his truck into position.
Were there any facts or circumstances shown by the record, which would have imposed a duty upon the truck driver to anticipate the presence of plaintiff or other children in the mouth of the upper hog chute and to exercise ordinary care to keep a lookout for children standing where plaintiff was standing? The evidence shows that the National Stockyards was an open market where people came to buy and sell and look at stock, but there was no evidence that such business was transacted at or about the hog house in question. The exhibits show it to be a rough open concrete skeleton building. Hogs were driven into pens on the ground floor and then driven up the ramps or chutes and loaded in doubledeck trucks. Sometimes hogs were driven into the pens before the trucks arrived and there would be fighting and squealing. The building was back from the street and the premises were enclosed with a fence except for the entranceway. On these facts should plaintiff's presence have been anticipated and care exercised for his safety?
In the case of Spencer v. Chicago City Railway Co., 220 Ill.App. 436, the court held that, where a girl three years old and unattended walked from the sidewalk directly in front of a street car, which had stopped at a street intersection to discharge and take on passengers, and when the car started was directly under the headlight out of the range of the motorman's vision, the motorman could not be expected in the exercise of ordinary care to anticipate the unusual situation, and no negligence could be predicated upon his failure to look to the sidewalk at the time the child left there, or upon his failure to look over the dashboard before starting the car. There was no reason to anticipate the child's presence at the particular time and place. And see Rex v. Lehigh Valley Transit Co., 116 Pa.Super. 603, 177 A. 226; Hearn v. St. Charles St. Ry. Co., 34 La.Ann. 160, 163.
In the case of Czarnetzky v. Booth, 210 Wis. 536, 246 N.W. 574, 577, it was held that the driver of a truck being backed closer to a gondola car to facilitate loading of sand and gravel (on property withdrawn from public travel) was under no duty to keep a lookout, unless he knew or ought to have known that plaintiff or someone else was likely to be passing behind the truck. And see Hartzheim v. Smith, 238 Wis. 55, 298 N.W. 196.
In the case of Chicago Alton R. Co. v. McLaughlin, 47 Ill, 265, the court held that where a freight car was standing upon a railroad track, separated from other cars and the engine, and the yardmaster mounted the car to loosen the brakes, it was not his duty to give any signal before the brakes were loosed, lest the car might move, when he had no reason to suppose any person would be endangered thereby, although, when he mounted the car, there were boys near the car, beside the track.
In the case of Larson v. Loucks, 69 S.D. 60, 6 N.W.2d 436, in an action against a motorist for the death of a child who was struck by an automobile in the yard of the child's farm home, the court held that the burden of proof was on plaintiff to show that the motorist had knowledge of the child's presence, or in the exercise of reasonable care should have discovered the child's presence and that, where there was no evidence from which it might be determined that the motorist saw or should have seen the child, there was no duty to look around or under the automobile, before starting it forward and making a U turn, to discover a 23 months old child hidden in front of or under the automobile.
On the record presented, where there was no evidence that defendant or any of its employees had any knowledge of the user of the hog house and chutes by juveniles, we find no evidence that defendant's driver, or one engaged in such work, should reasonably have anticipated the presence of plaintiff or other children in or upon the hog chute in question. No facts were shown which would impose a duty on defendant's driver to keep a lookout for children at the particular time and place where plaintiff was standing.
Since the facts and circumstances shown by this record were insufficient to impose a legal duty upon the defendant's truck driver "to exercise ordinary care to keep a lookout for children at the place where plaintiff was standing", we do not reach the question as to whether or not the failure to keep a lookout was the proximate cause of plaintiff's injuries. It is also unnecessary to determine whether the court erred in holding certain instructions erroneous.
The judgment as entered for defendant is affirmed.
All concur.